Except in certain limited and specified circumstances, the Act provides for meetings to be conducted in person. But the Georgia Court of Appeals has indicated that a "meeting" not permitted under the Act but sufficient to trigger consequences may occur "by written, telephonic, electronic, wireless, or other virtual means." Claxton Enter. v. Evans Cty. Board of Comm'rs., 249 Ga. App. 870, 875 549 S.E. 2d 830, 835 (2001). The Court added that "[a] designated place may be a postal, Internet, or telephonic address" and that "[a] designated time may be the date upon which requested responses are due." 249 Ga. App. at 876, 549 S.E.2d at 835.

A board may hold a meeting using interactive conference technology; provided that the interactive conference technology used by the board allows interaction among all members of the board participating in the meeting and all members of the public attending the meeting. Haw. Rev. Stat. § 92-3.5(a). Notice of meetings utilizing interactive conference technology must specify all locations at which board members will be physically present so that the public may attend the meeting at any of those locations. Id. If audio communication cannot be maintained at all locations, the meeting must be terminated. Id. § 92-3.5(c). Moreover, if copies of visual aids required by, or brought to the meeting by, board members or members of the public are not available at all locations where audio-only interactive technology is being used within fifteen minutes after audio-only communications is used, all agenda items for which visual aids are not available cannot be acted upon at the meetings. Id.

Idaho Code § 74-203(5) provides that meeting may be conducted using telecommunication devices that would enable all members of a governing body participating in the meeting to communicate with each other. Participation by a member of the governing body through telecommunication devices constitutes presence in person by such member at the meeting; provided, however, that at least one (1) member of the governing body, or the director of the public agency, or the chief administrative officer of the public agency shall be physically present at the location designated in the meeting notice.

1. A governmental body may conduct a meeting by electronic means only in circumstances where such a meeting in person is impossible or impractical and only if the governmental body complies with all of the following:

a. The governmental body provides public access to the conversation of the meeting to the extent reasonably possible.

b. The governmental body complies with section 21.4. For the purpose of this paragraph, the place of the meeting is the place from which the communication originates or where public access is provided to the conversation.

c. Minutes are kept of the meeting. The minutes shall include a statement explaining why a meeting in person was impossible or impractical.

2. A meeting conducted in compliance with this section shall not be considered in violation of this chapter.

3. A meeting by electronic means may be conducted without complying with paragraph “a” of subsection 1 if conducted in accordance with all of the requirements for a closed session contained in section 21.5.

School board members may violate KOMA if three or more members simultaneously engage in interactive discussion of board business through the use of computers. K.S.A. 75-4317, et seq. However, the sending of electronic mail to other board members, standing alone, does not constitute "interactive communications" under KOMA. Kan. Att’y Gen. Op. 1995-13. But, majority must be present. K.S.A. 75-4317a.

Kentucky’s Open Meetings Act provides for meetings to be conducted by video teleconference in limited circumstances. See Ky. Rev. Stat. 61.826. The same procedures with regard to notice, participation, distribution of materials, and other matters apply to meetings via video teleconference.

In general, electronic meetings violate the Act unless specifically authorized by statute, as is true for certain bodies. Remote participation (by conference call, video conference, or otherwise) is only authorized by statute for particular agencies. The Right to Know Advisory Committee has considered legislation to allow members of public bodies to participate remotely in public proceedings, subject to various limitations. The issue divided the Committee, and so far no legislation has been enacted.

The Office of the Attorney General has issued opinions that meetings conducted by telephone violate the Act. Op. Atty. Gen, May 17, 1977; Op. Atty Gen., April 6, 1977; Op. Atty Gen, March 25, 1977. “The practice of conducting ‘public proceedings’ over the telephone is inimical to the fundamental purpose embodied in the Freedom of Access Law . . . .” Op. Atty. Gen, Sept. 6, 1984. Even in emergencies, telephonic meetings violate the FOAA:

In [emergency] situations the Freedom of Access Law permits a relaxation of the notice requirements which must precede all public proceedings. However, the requirement that the meeting be public is not eliminated by its emergency nature. Thus, the practice of conducting a “public proceeding” by telephone cannot be justified under the Freedom of Access Law, on the ground that an emergency exist[s].

Id.

However, a Superior Court Justice refused to find that a municipal meeting conducted by telephone conference violated the Act where all participants were connected, and the plaintiff failed to demonstrate that he was prejudiced in any way by the conduct of the meeting without a physical location open to the public. Toomey v. Inhabitants of Frye Island, 2007 Me. Super. LEXIS 118, 2-3 (Me. Super. Ct. June 19, 2007). Had the plaintiff not attended, the outcome might have been different. Toomey also involved an unusual set of facts since it involved “a unique community that operates on an island in Sebago Lake as a seasonal municipality and closes in the Fall of each year. There are no year-round residents on the island.” Of course, nothing in the Act prevented the Town from holding the meeting at a physical location on the mainland.

Open Meetings Act [§ 15.261 et seq.] was not violated by Department of Social Services in contested case hearings in which teleconference calls were conducted over speaker phones and all interested persons who wished to attend hearings were allowed to do so; furthermore, release of a written opinion to public, rather than convening a second hearing for sole purpose of announcing hearing officer's decision, would meet requirements of the Act. Goode v. Department of Social Services, 143 Mich.App. 756, 373 N.W.2d 210 (1985).

A meeting can occur in person or electronically. NRS 241.015(3)(a). The law states that electronic communication "must not be used to circumvent the spirit or letter of this chapter in order to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory powers." NRS 241.030(4).

The Statute provides for electronic meetings under limited circumstances. RSA 91-A:2,III reads:
“A public body may, but is not required to, allow one or more members of the body to participate in a meeting by electronic or other means of communication for the benefit of the public and the governing body, subject to the provisions of this paragraph.
(a) A member of the public body may participate in a meeting other than by attendance in person at the location of the meeting only when such attendance is not reasonably practical. Any reason that such attendance is not reasonably practical shall be stated in the minutes of the meeting.
(b) Except in an emergency, a quorum of the public body shall be physically present at the location specified in the meeting notice as the location of the meeting. For purposes of this subparagraph, an "emergency'' means that immediate action is imperative and the physical presence of a quorum is not reasonably practical within the period of time requiring action. The determination that an emergency exists shall be made by the chairman or presiding officer of the public body, and the facts upon which that determination is based shall be included in the minutes of the meeting.
(c) Each part of a meeting required to be open to the public shall be audible or otherwise discernable to the public at the location specified in the meeting notice as the location of the meeting. Each member participating electronically or otherwise must be able to simultaneously hear each other and speak to each other during the meeting, and shall be audible or otherwise discernable to the public in attendance at the meeting's location. Any member participating in such fashion shall identify the persons present in the location from which the member is participating. No meeting shall be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.
(d) Any meeting held pursuant to the terms of this paragraph shall comply with all of the requirements of this chapter relating to public meetings, and shall not circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1.
(e) A member participating in a meeting by the means described in this paragraph is deemed to be present at the meeting for purposes of voting. All votes taken during such a meeting shall be by roll call vote.”

The law specifically applies to electronic meetings, defining a “meeting” as a formal or informal gathering or a work session, whether in person or through electronic means such as telephone or videoconference. N.D.C.C. § 44-04-17.1(9) (emphasis added).

Public bodies are authorized to hold meetings by videoconference provided that each member is visible and audible to each other and the public through a video monitor.25 O.S. § 307.A.1.No less than a quorum of the public body must be present at the posted meeting site.Id.

While no provision of the OML attempts to regulate electronic meetings (i.e., conference calls, e-mail), the OML does expressly prohibit the use of electronic communication to circumvent the spirit or requirements of the OML. R.I. Gen. Laws § 42-46-5(b). Discussions of a public body visa electronic communication shall be permitted only to schedule meetings. R.I. Gen. Laws § 42-46-5(b)(1).

A meeting under the act occurs when a quorum of the constituent membership of the body convenes in person or "by means of electronic equipment." S.C. Code Ann. § 30-4-20(d). When the public body convenes electronically the act would seem to require an opportunity for the public to have access to the electronic meeting to make the meeting public.

All public bodies may conduct any meeting wherein the public business is discussed or transacted through electronic communication means under certain circumstances and if certain procedures are followed. Va. Code Ann. § 2.2-3708.2.A. See the Act for additional circumstances and procedures for meetings by electronic communication of regional public bodies and state public bodies. Va. Code Ann. § 2.2-3708.2.B. and D. The circumstances and procedures for meetings by electronic communication shall not be construed to prohibit the use of interactive audio or video means to expand public participation. Va. Code Ann. § 2.2-3708.E.

No regular, special, or reconvened session of the General Assembly held pursuant to Article IV, Section 6 of the Constitution of Virginia shall be conducted using electronic communication means pursuant § 2.2-3708.2. Va. Code Ann. § 2.2-3707.01.D.

The Act says that “all” meetings of the governing body of a public agency shall be open and public. It does not require that such meetings be conducted in person. Presumably, meetings by conference call or e-mail are not prohibited so long as there is a speaker phone or video display terminal for the public who may wish to observe and/or listen to the proceedings. With the proper scheduling of meeting and agenda, such procedures would meet the requirements of the Act.

Stay informed by signing up for our mailing list

Keep up with our work by signing up to receive our monthly newsletter. We'll send you updates about the cases we're doing with journalists, news organizations, and documentary filmmakers working to keep you informed.